This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (2000).







In the Matter of the Welfare of:  S. S.



Filed January 16, 2001

Reversed and remanded

Lansing, Judge


Mower County District Court

File No. J00050136



Brandon V. Lawhead, 301 South Main Street, Austin, MN 55912 (for appellant S.S.)


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Patrick A. Oman, Mower County Attorney, Jonathan P. Olson, Assistant County Attorney, 201 First Street Northeast, Austin, MN 55912 (for respondent)


            Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


S.S. appeals the district court’s order certifying her to be tried as an adult on charges of criminal vehicular homicide and criminal vehicular operation.  In analyzing the six statutory factors for certification, the district court, “giving due weight” to the severity of the offense measured primarily by its consequences, concluded the proceedings should be certified.  The factor relating to the seriousness of the offense, however, necessarily includes the nature of the act as well as its consequences, and, even though heavily weighted, the seriousness-of-offense factor must be considered in conjunction with the other factors.  Because the factors are a test to determine whether certification serves public safety and because the clear and convincing evidence, which is undisputed, establishes that retaining S.S. in the juvenile system serves public safety, we reverse the certification order and remand for further proceedings in the juvenile court.


            While driving two friends home from a party in January 2000, 17-year-old S.S. struck a telephone pole.  S.S. and one of her two passengers were injured; the other passenger was killed.

Before the crash, the three friends made a “group decision” that S.S. should drive the car over a bridge with a large bump so that the car could “fly.”  S.S. drove onto the Roosevelt Bridge, in a 30-miles-per-hour speed zone, at approximately 70 miles per hour.  When she saw a biker ahead of her on the street, she swerved the car to avoid hitting the biker.  The car slid sideways, striking the telephone pole.  S.S. had no alcohol in her system when she struck the telephone pole.

The Mower County Attorney charged S.S. with criminal vehicular homicide, Minn. Stat. § 609.21, subd. 1 (1998), and criminal vehicular operation resulting in bodily harm, id., subd. 2b.  Mower County also moved to certify S.S. to be tried as an adult.  The district court found probable cause to go forward with the certification action.

Three witnesses testified at the certification hearing:  Dr. James M. Alsdurf, a licensed psychologist; Dr. Rosemary Linderman, a court-appointed psychologist; and Karen Fausch, S.S.’s probation officer.  All three of the witnesses recommended that the court not certify S.S.  After the witnesses testified, the deceased victim’s family presented a statement, through a representative, in which the family urged the court to certify S.S. as an adult.

            The district court evaluated the testimony in light of its interpretation of the factors listed in Minn. Stat. § 260B.125, subd. 4 (Supp. 1999), and determined that S.S. should be certified for adult prosecution.  S.S. appeals the certification order, arguing that she established through clear and convincing evidence that retaining her in the juvenile system serves public safety.


            Juvenile courts have considerable latitude in determining whether to certify a juvenile for adult prosecution.  In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App. 1989), review denied (Minn. Mar. 17, 1989).  The court’s certification determination is reviewed under an abuse-of-discretion standard.  In re Welfare of S.J.G., 547 N.W.2d 456, 459 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).  A misapplication of the governing law constitutes an abuse of discretion.  Couter & Gell v. Hartmarx Corp.,496 U.S. 384, 405, 110 S. Ct. 2447, 2461 (1990) (“A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law * * *.”); Moylan v. Moylan, 384 N.W.2d 859, 865 (Minn. 1986) (reversal and remand appropriate when record does not reveal that district court expressly considered relevant factors in exercising discretion).

S.S. was 17 years old at the time the accident occurred, and one of the charged offenses carries a presumptive prison sentence; thus, her certification was presumptive.  See Minn. Stat. § 260B.125, subd. 3 (Supp. 1999) (listing factors for presumptive certification).  To rebut the presumption of certification, S.S. had to establish through clear and convincing evidence that retaining the proceeding in the juvenile system serves public safety.  Id.

The district court found that S.S. had not met her burden of proving that public safety would be served if she remained in the juvenile system and therefore certified her to stand trial as an adult.  S.S. argues the district court abused its discretion because the evidence in the record does not support the district court’s decision.

In determining whether public safety requires adult certification, the court must consider the following statutory factors:

(1)       the seriousness of the alleged offense in terms of community protection, including the existence of any aggravating factors recognized by the sentencing guidelines, the use of a firearm, and the impact on any victim;

(2)       the culpability of the child in committing the alleged offense, including the level of the child’s participation in planning and carrying out the offense and the existence of any mitigating factors recognized by the sentencing guidelines;

(3)       the child’s prior record of delinquency;

(4)       the child’s programming history, including the child’s past willingness to participate meaningfully in available programming;

(5)       the adequacy of the punishment or programming available in the juvenile justice system; and

(6)       the dispositional options available for the child.


Id., subd. 4.  The court must place greater weight on the seriousness of the alleged offense and the juvenile’s prior record of delinquency.  Id.

The statutory factors address the nature of the offense and the circumstances of the child and are intended to assess whether a juvenile presents a risk to public safety—essentially a prediction of whether a juvenile is likely to offend in the future.  In re Welfare of H.S.H., 609 N.W.2d 259, 262(Minn. App. 2000).  The factors examine the juvenile’s past behavior and programming history and consider the juvenile’s current conduct.  Id.  “In the end, the factors must show that a risk to public safety exists because the juvenile’s behaviors are likely to continue.”  Id.

The district court addressed each of the six statutory factors, and, relying primarily on the seriousness of the offense as reflected in its consequences, the court concluded that retaining the proceedings in the juvenile court would not serve public safety.   We conclude that focusing on the consequences of the driving conduct resulted in a misapplication of the six-factor test to determine whether certification would serve public-safety interests.  We further conclude that the undisputed evidence clearly and convincingly established that public safety would be served by retaining juvenile-court jurisdiction.

          In evaluating the first factor, the district court found that the offense was one of the most serious crimes because it resulted in the death of another and had a strong negative effect on the deceased victim and her family.  Indisputably the crime had a negative impact on the victim and her family; the results of the crime were tragic.  But the determination of the seriousness of the offense should not rest solely on the results as opposed to the conduct involved in committing the offense.  Certification cases generally involve violent crimes against persons, such as assault or murder.  H.S.H., 609 N.W.2d at 262.  The risk to public safety posed by a person who commits assault or murder, particularly with specific intent, is clear.  It is undisputed that S.S. did not intend the tragic consequences of her act or engage in violent conduct that demonstrated an antisocial motive or a specific intent to do harm.

On the second factor, culpability, the district court found that S.S. had a high level of culpability.  For the purposes of a certification hearing, the charges against the juvenile are presumed to be true.  J.L.B., 435 N.W.2d at 598.  It is thus undisputed  that S.S. intended to drive the car in a grossly negligent manner.  But it is also undisputed that S.S. did not intend to harm anyone.  S.S. is culpable to the extent of her offense, but this culpability does not demonstrate that S.S. poses a threat of engaging in criminal behavior in the future.

         On the third factor, delinquency record, it is undisputed that S.S. has no record of delinquency. As Dr. Alsdurf testified, S.S. “is pretty squeaky clean,” is “a responsible person,” “is not one who has any evidence of behavioral disruption or conduct disorder,” and, as he wrote in his report, S.S. “has nothing in her history or current clinical presentation that would raise concerns regarding future dangerousness or community risk.”

            The district court determined that this factor was entitled to less weight because S.S. admitted that she had previously engaged in “flying,” which the district court found demonstrates the possibility of prior delinquent behavior.  Even accepting the court’s factual finding, however, S.S. has no prior delinquency record.

On the fourth factor, programming history, the district court found that S.S. had no programming or placement history and concluded that this factor neither supports nor opposes certification.  But when it is undisputed that the juvenile has not previously participated in any programming, this factor cannot weigh in favor of certification.  In re Welfare of D.T.H., 572 N.W.2d 742, 744 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998).  Further, the undisputed evidence shows that S.S. (1) has successfully and willingly participated in individual therapy sessions since the accident and (2) would be a willing participant in any future programming.

On the final factors, adequacy of punishment or programming available and dispositional options, the district court court found that it had minimal information on the adequacy of available punishment or programming and that the dispositional options would permit S.S. to receive the counseling recommended by the experts in either the juvenile or the adult system.

            A juvenile’s strong need for treatment that is unavailable in the juvenile system or that would require more time to complete than the time remaining under juvenile jurisdiction weighs in favor of certification.  H.S.H., 609 N.W.2d at 263.  The record established, however, that S.S. can receive the treatment that she needs in the juvenile system.  The testimony emphasized that it is critical that her counseling be monitored for two years.  Under extended juvenile jurisdiction, the juvenile court would retain jurisdiction over S.S. for the next four years, which, according to the undisputed evidence, is adequate time to complete the needed counseling.

It is also undisputed that there are programs available to S.S. in the juvenile system.  Specifically, the evidence established that S.S. can be placed at either Elmore Academy or Prairie Lake.  Absent certification, S.S. would be under extended juvenile jurisdiction until she reaches the age of 21, with her adult criminal sentence to be executed if she were to violate the provisions of the juvenile disposition order or commit a new offense.  Minn. Stat. § 260B.130, subd. 4(a).  Thus, S.S. would remain under supervision for the recommended time even after completion of either the Elmore Academy or Prairie Lake program.

Mower County argues that there is inadequate punishment in the juvenile system because there is no locked facility for girls.  But the record is devoid of any evidence that S.S. needs to be in a locked facility to ensure that public safety is served.  To the contrary, the testimony, without exception, stated that S.S. poses no threat to public safety because it is unlikely that she will ever engage in criminal conduct in the future.

         At the certification hearing, Dr. Alsdurf testified that although S.S.’s driving of the vehicle was reckless and impulsive, S.S. now “will be much less impulsive * * * maybe to the point of almost being obsessive and overly cautious.”  Similarly, Dr. Linderman testified that the accident appears to have made a life-long impact on S.S. and that S.S. will be no more of a risk to public safety than anyone else who drives.  No witness testified that S.S. poses a threat to public safety.

Acknowledging that the certification determination was a close and difficult decision, the district court, in ordering certification, relied primarily on the seriousness of the offense and the effect on the victims.  The statutory formulation for determining public safety requires the court to give greater weight to the seriousness of the offense and the child’s prior record of delinquency than to the other factors.  Minn. Stat. § 260B.125, subd. 4.  But the statutory factors are at base a legislative formulation to determine whether the child’s retention in the juvenile system presents a risk to public safety.  Because the overwhelming evidence establishes that S.S. presents no public safety risk, excessive reliance on the serious but unintended consequences of the conduct misapplies the statutory test.  In light of the clear and convincing evidence that S.S. does not represent a threat to public safety, we reverse the certification order and remand for further proceedings in the juvenile court.

Reversed and remanded.